Evans v. Memphis & Charleston Rail Road

56 Ala. 246 | Ala. | 1876

BEICKELL, C. J.

1. We concur with the judge of the Circuit Court in the opinion, that so much of the act of April 19, 1873, entitled “An act regulating the charges for transportation of freight upon railroads within this State” (Pamph. Acts 1872-3, p. 62), as relates to the transportation of passengers, is unconstitutional. The title limits the subject of the enactment to the transportation of freight, excluding by its terms any reference to passengers. Whether the act, if ■constitutional, has any especial influence on the questions the case presents, is not material to discuss.

2. A common carrier is bound to transport all freight and passengers which offer, within the line of his usual business, and an unreasonable failure or refusal is a breach of the duty imposed by the nature and character of his employment. — 2 Eedf. Eail 219, § 182. The carrier has power tq make reasonable rules and regulations, as to the time and mode of the performance of the duty; and to these rules all who seek his .services must conform. Injustice, he cannot ask to make unreasonable rules and regulations, or, without consulting the rights, convenience, and interest of the public who rely on him for transportation, arbitrary rules and regulations, adapted only to his convenience and interest. In determining whether a regulation he adopts is reasonable, while due regard will be paid to the character and responsibility of his relation to the public, their rights and interests must be kept in view. A railroad is a carrier of freight and passengers; and its officers and agents may properly use separate trains for the transportation of freight and of passengers, excluding passengers from the one, and freight from the other.— Cleveland, Columbus & Cincinnati Railroad Co. v. Bartram, 11 Ohio St. 459; Dunn v. Grand Trunk Railway, 58 Maine, 187. If they permit the transportation of passengers on trains especially devoted to the transportation of freight, it is but a reasonable regulation to require such passengers to procure tickets before entering the train. Such a regulation is not burdensome on the passenger, and may be necessary for the protection of the interests of the railroad company. It would be reasonable and just as to a train devoted especially to carriage of passengers. — C. B. & T. R. R. v. Parks, 18 Ill. 460.

These are propositions not controverted in the present case. The point of controversy is, the railroad company having opened its freight trains for the transportation of passensengers, who procured tickets, must not reasonable facilities be afforded the travelling public to procure tickets ? If such facilities are not afforded, can a passenger who has entered the car; after using proper diligence to procure a ticket, and failing, offers to pay the proper charge for his transportation, be rightfully ejected? We have no hesitation in answering the first question affirmatively, and the second negatively. In the determination of these questions, no importance is, or should be, attached to the fact, stated by the ticket agent at Tuscumbia, that the inducement to open the freight trains to the transportation of passengers was the request of _ citizens, residing near the line of the road, whose convenience would be thereby promoted. The fact is, the freight trains were opened to the transportation of all passengers who procured tickets before entering the cars. The only limitation on the right of transportation was the procurement of a ticket. The residence, or the business of the passenger, was not a reason for his exclusion; and it is far from being certain that any discrimination because of the residence, or business of the passenger (the business not being unlawful), could be allowed; that the freight trains could lie opened, not for the public at large — for all whose inclination, convenience, or interest, might induce them to accept that mode of transportation — but for persons residing in a particular locality, or taking that mode of transportation for particular reasons.

Having opened the freight trains for the transportation of passengers, inducing the public to seek and rely on transportation by them, while properly those who sought this mode of transportation could be required to procure tickets, reasonable facilities for procuring tickets must be afforded. It would be a mere delusion of the public, to advertise them that the freight trains were opened for the transportation of passengers who procured tickets, and yet afford no opportunity for procuring a ticket, until it would be more convenient to take the passenger train, if immediate transportation was the purpose. Immediate and expeditious transportation is the public benefit derived from railways, which is the consideration of the extraordinary rights and privileges conferred by the legislative enactments incorporating the companies constructing and operating them. The travelling public but seldom obtain the ticket, which is a mere acknowledgment of the right of the bearer to transportation, on any train passing to the place designated on it, until on the eve of the departure of the train it is proposed to take. This has been so long the habit of the travelling public, induced by the usage of railroads to afford, just before, and on the departure of the trains, more certainly than at any other time, the opportunity of procuring tickets, that it would be a public deception now to recognize as reasonable a regulation of the road which required the procurement of tickets several hours in advance of that time.

If it was a rule of this road, that the office for the sale of tickets should be open only an hour before the arrival or departure of the passenger trains, or only at the time of the arrival or departure of such trains, and this was several hours different from the time of the arrival and departure of the freight trains, it was not reasonable, as to persons desiring to travel on the freight trains. It was an inhibition of transportation on the freight trains opeDed to the uses of passengers’ trains, and publicly'appropriated to such uses, unless a regulation was complied with, that is variant from the usages of railroads, on which the travelling public do, and have just right to rely. It was misleading and deceptive, and would often operate, as the evidence in this case tends to show it did operate, to disappoint and delay those who accommodated themselves to the uses publicly made of the freight trains. Certainly, it was no hardship that the ticket office should have been opened, or some other facility afforded for procuring tickets, at some reasonable time coincident with the arrival and departure of the freight trains, if it was intended that the travelling public should be allowed passage on them. It would only have been conformity to the usage of railroads, and the usage of this road, as to passenger trains. The distinction between the two trains, except as to the accommodations to be afforded, and the speed of travel, was destroyed when the freight train was made also a passenger train. While the procurement of a ticket was a reasonable regulation,' it becomes unreasonable, if proper facilities for obtaining it are not afforded. Proper facilities are not afforded, when tickets can be bought, as a matter of right, only when transportation immediately would be more convenient on the regular passenger trains.

The Circuit Court erred in the second and third instructions to the jury, and in refusing the first instruction requested by the appellant. We are not justified, in the present aspect of the case, in determining whether the appellant’s remedy for the wrong of which he complains is against the lessee only, or against lessor and lessee jointly. Nor is there before ns any question as to the measure of damages, if the appellant can recover.

The judgment is reversed, and the cause remanded.